SHAKEEL AHMAD. J.- This unfortunate case has been brought before this Court by the petitioner (Shah Fahad) alias Katrina, who is a transgender (eunuch), invoking provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, for the following relief:-
(i) Seeking declaration that the act of blocking the petitioner's CNIC by NADRA (respondent No.6 & 7) being alien to law, is illegal and void ab-initio.
(ii) Declaration to the effect that due to blockage of his CNIC, he has sustained acute mental torture, agony, body pain, psychological trauma, which seriously infringed his fundamental, legal and accrued rights guaranteed under the Constitution of Pakistan and law of the land.
(iii) Seeks issuance of writ in the nature of mandamus, directing respondent No.6 & 7 to unblock his CNIC.
(iv) Direct the concerned stakeholders to brainstorm and take effective steps in ameliorating the problems faced by transgender people, and to make efforts in bringing them to the mainstream.
(v) Direct the concerned stakeholders in devising a concrete mechanism/ legislation, ensuring that the identities of sureties/identifiers in criminal cases are cross-checked through bio-metric verification so that the culture of buying and selling sureties and other malpractices in the Court's premises can be eradicated.
(vi) Entire cost of litigation.
(vii) Any other relief being not specifically prayed herein but seems fit and appropriate in the given circumstances of the case, may also be granted in the best interest of justice and fair play."
2. Filtering the unnecessary details, the facts which are requisite to be stated are that the petitioner being Eunuch belongs to Transgender Community. He is a citizen of Pakistan and is entitled to be treated in accordance with law. He belongs to the Province of Khyber Pakhtunkhwa and a permanent resident of District Peshawar having a valid Domicile of the said district. After following all legal and codal formalities, his CNIC No.17301-7355393-1 was issued to him by the NADRA. It is averred in the petition that one Mst. Gulab Zarin was booked in a narcotic case bearing FIR No.95 dated 15.10.2014, and after obtaining bail by this Court, in her surety bonds, the name of the petitioner was incorporated by someone and thus, the petitioner was shown as one of her surety.
During trial, the said Mst. Gulab Zarin absented herself from the Court, therefore, the learned trial Court issued NBWs against her sureties/identifiers. In pursuance thereof, the petitioner put his appearance before the learned trial Court and denied his signature over the surety bonds, on which, the learned trial Court sent specimen of his signature to the FSL for clarification, where it was opined by the handwriting expert that his signature over the bail bonds is forged and fictitious. The learned trial Court, after receipt of FSL report, absolved the petitioner from all liabilities vide order dated 12.06.2015, but the petitioner was shocked, when he learnt about two other FIRs, wherein, he was also shown as surety of the other two accused, and vide two separate orders dated 04.03.2019 and 19.04.2019, the learned Court below directed respondent No.6 & 7 to block his CNIC. In the said background, the petitioner has filed the instant petition before this Court.
3. Pursuant to the order of this Court, the respondent No.6 & 7 filed their separate para-wise comments raising therein many legal and factual objections.
4. Mr. Umair Iqbal, Advocate appearing on behalf of the petitioner pointed out the traumatic experiences faced by the members of the Transgender Community (for short TG Community) and argued that every person of that community, including the petitioner has legal right to be treated in accordance with law in terms of Article 4 of the Constitution of Pakistan, and to espouse and determine their identity. He next argued that since the TGs are neither treated as male or female, nor given the status of third gender, they are being deprived of many rights and privileges, which other persons are enjoying as citizen of this country. He added that transgenders are deprived of social and cultural participation and hence restricted access to education, healthcare and public places, which deprives them of the constitutional guarantee of equality before law and equal protection of laws. It was further pointed out that the Transgender Community also faces discrimination to contest election, right to vote, employment to get licences etc. According to him, transgenders are treated as an outcast and untouchable. He further pointed out that they cannot be discriminated on the ground of gender, violating Articles 4 to 28 of the Constitution. Adverting to the impugned act of blockage of CNIC, he drew our attention to the order dated 12.06.2015, passed by the learned Judge Special Court (CNS), Peshawar appended at page 20 of the writ petition and FSL report and went on to say that the FSL report negates the prosecution version as his signatures on the surety bonds were found forged and fictitious and that petitioner was impersonated thrice, and he himself is the victim of fraud and cheating and concluded his arguments by saying that claimed relief may be granted to him.
5. The learned AAG appearing on behalf of respondent No.7 & 7 assisted by Shahid Imran Gigyani, Assistant Director (Legal) NADRA agreed with the contention of the learned counsel for the petitioner, added that Transgender Community are the most deprived group of the society and called for constitutional as well as legal protection for their rights, identity and for the social economic benefits, which are otherwise extended to the members of the male and female genders in the community.
6. Having heard the arguments of the learned counsel for the parties, we are of the view that the present writ petition preferred under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, exposes with luminosity the prevalence of gender inequality in the society, which compels one to contemplate whether fundamental conception of gender empowerment and gender justice has been actualized despite number of legislation, judicial pronouncements and progressive outlook in the society or behind the liberal exterior, there is a facade which gets uncurtained on transgender discernment.
7. We noted and observe that seldom, our society realizes or cares to realize the trauma, agony, pain and humiliation, which the members of transgender society undergo, nor appreciate the innate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the transgender community in public places like railway stations, bus stands, workplaces, malls, schools, hospitals, theatres etc. They are sidelined and treated untouchables, forgetting the fact that the moral failure lies in society's unwillingness to accept them as human beings or embrace different gender identities and expressions, a mind set, which we have to change.
8. We are, in this case, concerned with the grievance of the petitioner, who has raised his voice against the blockage of his CNIC at the order of respondent No.9 (Additional Sessions Judge-IX, Peshawar). A perusal of the impugned orders dated 04.03.2019 & 19.04.2019, passed by the learned Court below reflects that pursuant to the proceedings initiated under section 514 Cr.PC, the CNIC of the petitioner was blocked by the respondent No.6 & 7. A perusal of the said orders reflects that the petitioner and one Abdullah are shown as sureties of accused Mst. Naheed Bibi in crime No.88 dated 22.01.2015 registered under section 9-C CNS Act, at Police Station, Paharipura. Again, he and one Muhammad Imran s/o Ghayas-ud-Din were named as surety of accused Maaz Ahmad s/o Sawab Gul r/o Qamar Din Garhi, Kohat Road, Peshawar, who had been released on bail in crime No.762 dated 08.06.2015 registered under section 9-C CNS Act, 1997 of Police Station, Hayatabad Peshawar. The record further reveals that prior to the instant case, the petitioner was nominated as surety of one Mst. Gulab Zarin wife of Abid-Ullah r/o Mingora Swat and during proceedings under section 514 Cr.PC, when NBS was issued against him to procure his attendance vide order dated 09.04.2015, he put his appearance before the learned Judge Special Court, submitted an application that he neither stood as surety of the accused nor the bail bonds carries his signatures, rather he is the victim of impersonation. The learned Judge Special Court, CNS, realizing his trauma and agony, sent the specimen of his signatures to FSL for comparison and report vide order dated 09.04.2015. The handwriting expert, after examining his signatures, opined that his signatures over the surety bonds were forged, whereafter, he was discharged from the liability of surety bonds vide order dated 12.06.2015. It is pertinent to mention here that the said surety bond had been attested by the Judicial Magistrate Mr. Johar Ijaz Ali Shah. Again, he has faced, the same problems. It seems that the petitioner was a victim of cheating by personation in the Court of the learned Magistrate who attested the bail bonds, who even did not bother to inquire about the identity of the sureties before attesting the bail bonds, and attested the bail bonds in much haste and in a casual manner without caring for the legal requirement, which created a lot pf problem to the fragile and feeble member of the Transgender Community. We, therefore, issue direction to the learned Sessions Judges and Presiding Officers of the subordinate Courts of all the Districts of the Province of Khyber Pakhtunkhwa to avoid such practice and before attesting the bail bonds/surety bonds, they must inquire about the identity of the sureties and the respondent No.6 & 7 are directed to provide facility of biometric system in the Courts of Judicial Magistrates, Additional Sessions Judges/Judges Special Courts and Sessions Judges of the Province of the Khyber Pakhtunkhwa, for comparison of signatures/thumb impressions of the sureties.
09. Now turning to the steps to be taken to improve the conditions and status of the members of TGs Community in the Province of Khyber Pakhtunkhwa as pointed out by the learned counsels for the parties, we noticed that during British era, a legislation was enacted to supervise the deeds of Transgender Community, called the Criminal Tribes Act, 1871, which provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons also could be arrested to imprisonment upto two years or fine or with both. Under the Act ibid, the local government had to register the names and residence of all eunuchs residing in the area as well as their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offence under section 377 of the Indian Penal Code (IPC), or of abetting the commission of any of the said offences. Under the Act, the act of keeping any body under 16 years in the charge of a registered eunuch was an offence punishable with imprisonment upto two years or fine and the act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son. The Act has, however, been repealed in August 1949. Hence, we express no opinion on it as we are in this case concern altogether with different issues raised by the learned counsel for the petitioner in the memo of petition, relating to the constitutional and other legal rights of the Transgender Community and their gender identity and sexual orientation.
10. United Nations have been instrumental in pleading the protection and promotion of rights of transgender persons. Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 recognise that every human being has the inherent right to live and this right shall be protected by law and no one shall be arbitrarily deprived of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR speaks that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks. International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations, took a project to develop a set of International Legal Principles on the application of International Law to human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to State's human rights obligations. Under the law, everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Sexual orientation and gender identity are integral to each person's dignity. Even a transgender has the right to freedom of expression and opinion regardless of his sexual orientation or gender identity.
11. Before parting with the judgment, it is observed that role of Court is to understand the central purpose and theme of the Constitution for the welfare of the society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes, a change in the law precedes societal change and is even in the law is the result in the social reality. When we discuss about the rights of transgenders in the constitutional context and perspective, we find that in order to bring about complete paradigm shift, law has to play more predominant role. As transgenders in Pakistan/ subcontinent are neither male nor female, treating them differently, is the denial of the fundamental rights guaranteed to the citizen of Pakistan. It is the denial of social justice, which in turn has the effect of denying political and economic justice.
12. We, therefore, allow this petition, set aside the impugned orders dated 04.03.2019 & 19.04.2019, passed by the learned Additional Sessions Judge-IX, Peshawar/respondent No.9, direct the respondent No.6 & 7 to unblock his CNIC forthwith and also absolve the petitioner from the liability of bail bonds.